45 Fla. L. Weekly D642a

Insurance — Homeowners — Property damage — Actual cash value — Evidence — Matching costs — Action for breach of insurance contract alleging that insurer failed to pay actual cash value for loss — Predecessor judge adhered to plain language of policy and Florida law in granting insurer’s motion in limine to preclude insured from introducing evidence of matching costs before insured began making repairs — Plain language of insurance policy and relevant statutes limit the initial payment of actual cash value to the direct physical loss to the property, and matching is not a direct physical loss — Entry of judgment as to breach of contract reversed where trial court committed procedural error by summarily concluding that insured could not recover for breach of contract despite neither party moving for summary judgment — Declaratory judgment — Directed verdict — Trial court erred in entering directed verdict in declaratory action — Declaration requested was moot where question of law had been previously settled — Moreover, trial court exceeded its procedural authority in directing verdict prior to commencement of trial

GLENDYS VAZQUEZ, Appellant/Cross Appellee, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee/Cross Appellant. 3rd District. Case Nos. 3D18-779, 3D18-769. L.T. Case No. 16-2262. March 18, 2020. Appeals from the Circuit Court for Miami-Dade County, Antonio Arzola and David C. Miller, Judges. Counsel: Barnard Law Offices, L.P., Andrew C. Barnard, Erik T. Barnard and Garrett William Haakon Clifford; Cassel & Cassel, P.A., Hillary B. Cassel and Michael A. Cassel (Hollywood); Kula & Associates, P.A., Elliot B. Kula and W. Aaron Daniel; Chavin Mitchell Shmuely, P.A., Valorie S. Chavin and James E. Mitchell, for appellant/cross appellee. Butler Weihmuller Katz Craig LLP, Anthony J. Russo, J. Pablo Caceres and Mihaela Cabulea (Tampa), for appellee/cross appellant.

(Before SALTER, MILLER and GORDO, JJ.)ON MOTION FOR CLARIFICATION[Original Opinion at 44 Fla. L. Weekly D2578b]

(GORDO, J.) Upon considering Appellant/Cross Appellee’s Motion for Clarification, this Court withdraws its previous opinion filed on October 23, 2019, and substitutes the following opinion in its place.INTRODUCTION

Glendys Vazquez appeals the trial court’s order granting a motion in limine precluding evidence of matching costs and the Amended Final Judgment in favor of Citizens Property Insurance Corporation on her breach of insurance contract claim. Citizens cross-appeals the Amended Final Judgment in favor of Ms. Vazquez as to the court directing verdict on a count of declaratory action. We affirm the order on the motion in limine and the trial court’s denial of reconsideration based on the trial court’s adherence to the plain language of the policy and applicable statute in limiting the evidence. We reverse the trial court’s entry of judgment on the breach of contract claim based on procedural error and entry of directed verdict on the declaratory judgment action as the issue was moot.FACTS & PROCEDURAL HISTORY

In 2014, water intrusion damaged twelve ceramic tiles and one kitchen cabinet in Ms. Vazquez’s home. Ms. Vazquez filed a claim under her insurance policy with Citizens. The policy required the insurer to pay the actual cash value of the insured loss.¹ Pursuant to the policy, Citizens paid $33,759.52 based on its assessment of the damages to Ms. Vazquez’s tile floor and kitchen cabinet. Ms. Vazquez cashed the check.

Before beginning repairs, Ms. Vazquez hired her own loss consultant, Robert Moreno, to estimate the damages. The estimate included costs for matching the continuous tile flooring throughout her house and all of her kitchen cabinets.

Ms. Vazquez subsequently sued Citizens for breach of contract claiming that Citizens failed to pay the actual cash value of the loss because she was entitled to recover $84,542.93, which included matching costs. Ms. Vazquez also sued for declaratory relief requesting a declaration that “payment by [Citizens] of an amount which it claims to be satisfaction of the value of the loss does not create a legal presumption that the amount paid is the Actual Cash Value of a covered loss.”

Prior to trial, Ms. Vazquez filed an affidavit from Mr. Moreno, who planned on testifying that approximately $70,000.00 of his $84,542.93 estimate was for matching costs. Given that Ms. Vazquez’s complaint was for actual cash value, Citizens filed a motion in limine asking the court to preclude evidence and testimony related to matching damages from the trial and limit the evidence on damages to direct physical loss.

At the hearing on the motion in limine, Ms. Vazquez asserted she should be able to argue to a jury that actual cash value includes costs for matching her continuous tile flooring and kitchen cabinets. The trial court granted the motion in limine finding that, pursuant to the policy and applicable statute, Citizens was only initially required to pay the actual cash value of the property that sustained the direct physical loss. The court concluded Citizens did not yet have an obligation to pay any remaining amounts beyond actual cash value, including matching costs, because Ms. Vazquez had not begun making repairs or performing work on the property and had not incurred any expenses.

The court noted that Ms. Vazquez had chosen to bring suit based on the actual cash value owed and ruled that, as a matter of law, actual cash value did not include matching. The court relied on Ocean View Towers Ass’n, Inc. v. QBE Insurance Corp., to find that matching is not a direct physical loss. No. 11-60447-Civ., 2011 WL 6754063 (S.D. Fla. Dec. 22, 2011). Thus, the court limited the evidence to the actual cash value of the physical damage and excluded evidence of undamaged items. The court also clarified that its ruling did not preclude Ms. Vazquez from seeking to recover matching costs.

On the morning of trial, Ms. Vazquez moved for reconsideration of the limine order before the successor judge, which was denied. Thereafter, the trial court entered judgment in favor of Citizens on the breach of insurance contract claim. The trial court concluded, based on the order on the motion in limine and Mr. Moreno’s affidavit, that Citizens substantially overpaid the actual cash value owed to Ms. Vazquez and she could take nothing by the action.

Ms. Vazquez also moved for directed verdict on the declaratory action relying upon this Court’s opinion in Servando Vazquez v. Southern Fidelity Property & Casualty, Inc., which was released during the pendency of Ms. Vazquez’s case below. 230 So. 3d 1242 (Fla. 3d DCA 2017). In Servando, this Court held: “Section 627.7011(3) requires payment of actual cash value — not merely the insurance company’s estimate of actual cash value.” Id. at 1243. Pursuant to Servando, the trial court entered judgment in favor of Ms. Vazquez and made the following declaration: “The payment by CITIZENS of an amount which it claims to be satisfaction of the value of the loss does not create a legal presumption that the amount paid is the actual cash value of the covered loss.”

The final judgment was later amended. These appeals followed.ANALYSIS

1) Motion in Limine Regarding Actual Cash Value & Entry of Judgment on the Breach of Contract Claim

Generally, “[t]he standard of review of a trial court’s ruling on a motion in limine is abuse of discretion. Such discretion is limited by the rules of evidence, and a trial court abuses its discretion if its ruling is based on an ‘erroneous view of the law . . . .’ ” Patrick v. State, 104 So. 3d 1046, 1056 (Fla. 2012) (citations omitted). However, where the trial court’s order presents questions of insurance policy interpretation and statutory construction, our review is de novo. Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433, 437 (Fla. 2013) [38 Fla. L. Weekly S507a].

“When ‘interpreting an insurance contract,’ this Court is ‘bound by the plain meaning of the contract’s text.’ ” Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 157 (Fla. 2013) (quoting State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 569 (Fla. 2011)). “If the language used in an insurance policy is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning of the language used so as to give effect to the policy as it was written.” Id. (quoting Menendez, 70 So. 3d at 569-70). Similarly, “[w]hen construing a statute, this Court attempts to give effect to the Legislature’s intent, looking first to the actual language used in the statute and its plain meaning.” Trinidad, 121 So. 3d at 439.

The coverage provision of Ms. Vazquez’s policy reads: “We insure against risk of direct loss to property . . . only if that loss is a physical loss to property.” The loss settlement provision states: “We will initially pay at least the actual cash value of the insured loss, less any applicable deductible. We will then pay any remaining amounts necessary to perform such repairs as work is performed and expenses incurred. . . .” This loss settlement provision directly mirrors the language of section 627.7011(3)(a), which provides:

In the event of a loss for which a dwelling or personal property is insured on the basis of replacement costs:

For a dwelling, the insurer must initially pay at least the actual cash value of the insured loss, less any applicable deductible. The insurer shall pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred.

§ 627.7011(3)(a), Fla. Stat. (2019).

The plain language of the insurance policy explicitly covers loss that is “direct loss to property . . . only if that loss is a physical loss.” This Court has previously interpreted the meaning of this language: “A ‘loss’ is the diminution of value of something, and in this case, the ‘something’ is the insureds’ house or personal property. Loss, Black’s Law Dictionary (10th ed. 2014). ‘Direct’ and ‘physical’ modify loss and impose the requirement that the damage be actual.” Homeowners Choice Prop. & Cas. v. Maspons, 211 So. 3d 1067, 1069 (Fla. 3d DCA 2017).

Consistent with this plain meaning, the trial court determined that the “insured loss” is the property that was actually damaged. Accordingly, the trial court limited evidence of actual cash value to the property that was actually damaged based on the contractual and statutory language requiring Citizens to “initially pay the actual cash value of the insured loss.” The court rejected Ms. Vazquez’s argument — that actual cash value included costs to replace undamaged items in order to match her continuous floor — as irrelevant in this suit for actual cash value. See § 90.401, Fla. Stat. (2019) (“Relevant evidence is evidence tending to prove or disprove a material fact.”).

On appeal, Ms. Vazquez argues that matching costs are part of actual cash value because actual cash value includes all costs reasonably necessary to do the repairs minus depreciation.² In Trinidad, the Florida Supreme Court defined “actual cash value . . . as ‘fair market value’ or ‘[r]eplacement cost minus normal depreciation.’ ” 121 So. 3d at 438 (quoting Black’s Law Dictionary 506, 1690 (9th ed. 2009)). Ms. Vazquez, therefore, asserts that the cost of matching her floor is a “replacement cost” that must be included as part of the actual cash value calculation.

This argument ignores the plain text of the statute and is unsupported by Trinidad, which does not discuss matching costs. Moreover, Trinidad involved the interpretation of the 2008 version of section 627.7011, which provided: “In the event of a loss for which a dwelling or personal property is insured on the basis of replacement costs, the insurer shall pay the replacement cost without reservation or holdback of any depreciation in value, whether or not the insured replaces or repairs the dwelling or property.” 121 So. 3d at 439 (emphasis in original). In Trinidad, the Court held: “Because section 627.7011, Florida Statutes (2008), and the replacement cost policy in this case, did not require the insured to actually repair the property as a condition precedent to the insurer’s obligation to make payment, the insurer was not authorized to withhold, pending actual repair, its payment for replacement costs . . . .” Id. at 436.

Critically, the current version of the statute has been changed and the provision requiring payment of replacement cost “whether or not the insured replaces or repairs the dwelling or property” has been omitted. Section 627.7011 presently reads: “The insurer shall pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred.”

Ms. Vazquez’s interpretation further disregards the plain text of the matching statute, which clearly defers to the policy as controlling.³ Thus, despite Ms. Vazquez’s argument, the plain language of the statute and the policy clearly require the insurer to pay any remaining amounts as the repairs are performed. Accordingly, we affirm the trial court’s order and approve the successor judge’s denial of the motion for reconsideration.

While we affirm the court’s rulings in part, we reverse the entry of judgment as to the breach of contract action. Neither party moved for summary judgment following the denial of reconsideration of the motion in limine order, yet the court summarily concluded that Ms. Vazquez could not recover for breach of contract. The court then entered final judgment based on the legal rulings in the motion in limine order and an expert affidavit filed on behalf of Ms. Vazquez. This was procedural error. See Fla. R. Civ. P. 1.510(c) (prescribing motion and notice requirements that must be met before a movant is entitled to summary judgment); Otero v. Gomez, 143 So. 3d 1089, 1092 (Fla. 3d DCA 2014) (reversing the trial court’s entry of final judgment where the motion in limine was used as a vehicle to grant summary judgment without affording the required notice); Connell v. Capital City Partners, LLC, 932 So. 2d 442, 444 (Fla. 3d DAC 2006) (“[T]he granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process.”).

2) Directed Verdict on Declaratory Action

Ms. Vazquez moved for a directed verdict and requested a declaration that payment by Citizens of an amount which it claims to be satisfaction of the value of the loss does not create a legal presumption that the amount paid is the actual cash value owed. She attached this Court’s decision in Servando to her motion and asserted that our opinion resolved the issue in her favor. 230 So. 3d 1242. Indeed, in Servando, we specifically held there is no presumption that the insurance company’s estimate of actual cash value satisfied their obligation under the policy. Id. at 1243.

As our decision in Servando settled the question of law, the declaration requested was rendered moot. “The purpose of a declaratory judgment is to afford parties relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations.” Santa Rosa Cty. v. Admin. Comm’n, Div. of Admin. Hearings, 661 So. 2d 1190, 1192 (Fla. 1995) (citing Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991)). A declaratory judgment “may not be invoked if it appears that there is no bona fide dispute with reference to a present justiciable question.” Ashe v. City of Boca Raton, 133 So. 2d 122, 124 (Fla. 2d DCA 1961). See Ready v. Safeway Rock Co., 24 So. 2d 808, 811 (Fla. 1946) (Brown, J., concurring specially) (“It is well settled that a proceeding for a declaratory judgment must be based upon an actual controversy. . . . No proceeding lies under the declaratory judgments acts to obtain a judgment which is merely advisory or which merely answers a moot or abstract question.”) (citation omitted). Accordingly, we reverse.CONCLUSION

Based on the record before us, we find the predecessor judge adhered to the plain language of the policy and Florida law in granting Citizens’ motion in limine to preclude matching costs. However, the trial court erred in entering judgment on the breach of contract claim on the morning of trial and issuing a declaration on a settled question of law.

Affirmed in part, reversed in part for further proceedings consistent with this opinion.

__________________

¹The loss settlement provision of the policy reads:

Buildings under Coverage A or B at replacement cost without deduction for depreciation, subject to the following:

. . .

We will initially pay at least the actual cash value of the insured loss, less any applicable deductible. We will then pay any remaining amounts necessary to perform such repairs as work is performed and expenses incurred. . . .

²Oral Argument at 5:11, https://www.3dca.flcourts.org/Oral-Arguments/Video-Oral-Argument-Archives.

³

Unless otherwise provided by the policy, when a homeowner’s insurance policy provides for the adjustment and settlement of first-party losses based on repair or replacement cost, the following requirements apply:

. . .

(2) When a loss requires replacement of items and the replaced items do not match in quality, color, or size, the insurer shall make reasonable repairs or replacement of items in adjoining areas . . . .

§ 626.9744, Fla. Stat. (2019).